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October 12, 2009

Does Facebook "Poking" Count as "Communication?"

For one woman in Tennessee, it certainly did, at least according to police.

A Tennessee woman was arrested for "Poking" another woman on Facebook, essentially breaking a legal order of protection against the woman that barred her from "telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly." Supposedly, this "poke" counts as communication, at least legally.

Do you agree?

The article quotes Ryan Calo, a residential fellow at Stanford Law School's Center for Internet & Society, who said "A poke is a very deliberate action," he said. "You have to select the person and say, 'this is what I want to do.'"

I can certainly see his point. Neither party involved in the order of protection will reveal what it's for, but I can see even a Facebook poke as a form of intimidation. Sort of a "I know where you are" type of thing, keeping the assailant in the front of the victim's mind. It's really not much different than appearing outside where a person lives or works, or even just a place they frequent, just so the victim will keep the assailant's face in mind. Since you don't have to be friends with people on Facebook to poke them, there's really no way to prevent it, either.

The article mentions how they are doing some investigating to make sure the woman's account wasn't hacked or logged into by somebody else, to make sure that she was the one who actually did it. But what if she is the one who did it? Is this a violation of the order of protection? Is it worth 11 months of incarceration (the penalty for violating the order)?

It's funny how all of these laws we have on the books, none of them get updated to deal with present technology until they stumble across a loophole in them that didn't exist when the laws were created; loopholes that new technology brings to the forefront. Maybe "loopholes" is the wrong word, but just things that the law couldn't have accounted for because there was no way to envision what way society would go. I'm sure these things come up all the time, with lawmakers and judges having to determine whether the current law actually covers it or not.

So is a Facebook poke "communication" as set out an order of protection against all communication between one party and another? Personally, I have to agree with Mr. Cole. Because it is a conscious act, placing yourself into the "face" (or Facebook, in this case) of the person who filed the order, it is communication. You made the choice of sending that poke out. You're putting yourself front and center into that person's view again.

Assuming she is the one who did the poke, I think she should serve that sentence.

What do you think?

*Update* A friend just pointed out that "poking" is really more a form of contact than of communication. That's the word I should have used, as nothing else in the post needs to change. It's still a violation of the order of protection. So re-read the post with "contact" in there instead!

*Update 2* For those who wonder how this woman could have poked the other woman while not being on a friends list (assuming she wasn't, of course), here's what Facebook says about poking:

The poke feature can be used for a variety of things on Facebook. For ...

The poke feature can be used for a variety of things on Facebook. For instance, you can poke your friends to say hello. If you poke a user who normally does not have access to your profile, they will be able to temporarily see your Basic Info, Work Info, and Education Info. When you poke someone, they will receive a poke alert on their home page."

Thus, the words "if you poke a user who normally does not have access to your profile...", that implies that it is sometimes possible to poke somebody not on your friends list. I'm not sure what setting needs to be changed to allow/disallow this, but it is obviously possible.

"It may be possible to set it up that way, but it's not the default. I've got a friend who wasn't a FB friend at the time, and we poked back and forth for a while. Now we're FB friends so it doesn't matter, but I know it is possible.

Most likely it is possible to change it, but how many people out there truly know how to manage their privacy settings? It's fewer than you think"